24. Mai 2022
Nothing ventured, nothing gained – entrepreneurial actions always entail certain risks. It is in the nature of things. However, it is the management’s responsibility to deal with risks appropriately and engage in risk management. This mainly also involves detecting, evaluating and limiting legal risks.
These risks can occur in all areas of a company, especially when involved in the manufacturing, trading and distribution of products. Product safety requirements are continuously increasing. According to the German Federal Motor Transport Authority (KBA), 2019 was the year with the most product recalls, although 2013 was the year of the biggest food fraud of the 21st century (namely the horsemeat scandal) and in 2016, the world was talking about the “Dieselgate”. Such headlines can damage your image and turnover. The management is liable – possibly also personally – if an unsafe or otherwise non-compliant product enters the market and violates legal interests. The “principle of the general responsibility and competence of management” [BGH (i.e. the German Federal Supreme Court), 06.07.1990, leather spray decision] applies generally – even if the management is split between several people and divisions.
How to avoid liability? In short: Safeguard Product Compliance! The obligation to do so arises from law. Managing directors and board members are bound by their employment contracts, by the Articles of Association and by law and statute. They must act “properly and diligently” (Sec. 43 German Lim-ited Liability Companies Act (“GmbHG”), Sec. 93 German Stock Corporation Act (“AktG”)) and carry out the “necessary” supervisory measures to prevent business-related misdemeanours and offences (Sec. 130, 30 German Act on Regulatory Offences (“OWiG”)). What “properly and diligently” means, is based on the “customary usage in the trade”.
However, when it comes to specific guidance and organisational guidelines, managers are left alone by the legislator and case law. We have developed this Practical Guide to illustrate how liability risks can be minimised by a business organisation based on best practice principles.